In Arnold & others v Sandwell Metropolitan Borough Council and other joined appeals EAT/0332/08, EAT/0365/08 and EAT/0366/08, in a departure from the Highland Council decision, the EAT held that, to confer jurisdiction on the employment tribunal in an equal pay case, it is sufficient for a grievance to state that an equal pay claim is being raised and for any subsequent tribunal claim to relate to equal pay.

We review recent significant equal pay cases and their implications. Developments of note include the application of the "single source" test to comparators within an employment unit, and a reference to the ECJ on whether use of length of service as a pay system criterion requires specific objective justification.

In Bailey and others v Home Office, the Court of Appeal holds that the tribunal was correct to hold that the Home Office was required to show that there was a genuine material factor which was not the difference of sex and which objectively justified the less favourable terms of the claimants' contracts, who had been evaluated as performing work of an equal value to their male comparators, but who were paid at a lower rate.

In 1) Bainbridge & Ors 2) Redcar & Cleveland Borough Council v 1) Redcar & Cleveland Borough Council 2) Williams EAT/0424/06 & EAT/0031/07 the Employment Appeal Tribunal held that successful equal pay claims confer the right to up to six years' back pay prior to the institution of proceedings.

In Barclays Bank plc v James (10 January 1990) EOR30A, the EAT holds that a woman is precluded from claiming under the Sex Discrimination Act 1975 that she had been directly discriminated against under a contractual retirement policy if the employer can show that the complaint should have been brought under the Equal Pay Act 1970 by identifying a comparator employed on equal work.

The Employment Appeal Tribunal has considered the circumstances in which the terms and conditions of employees derive from the "same source" as their comparators for the purposes of the Equal Pay Act 1970.

In British Coal Corporation v Smith and others (16 March 1993) EOR52B, the EAT holds that in order for a comparison between different establishments to be permissible under s.1(6) of the Equal Pay Act 1970, neither the terms and conditions of employment of the applicant's class nor those of her comparator's class can differ for the reason that the members of that class are employed at their own particular establishment.

In British Coal Corporation v Smith and others, the House of Lords holds that a woman claiming equal pay for equal work with men employed by the same employer at different establishments must show that those men, and employees in the same category as them at her own establishment, were or would be employed on broadly similar terms and conditions.

In British Coal Corporation v Smith and others (22 May 1996) EOR68B, the House of Lords rules that "common terms and conditions of employment" within the meaning of s.1(6) of the Equal Pay Act 1970 means terms and conditions which are substantially comparable on a broad basis, rather than the same terms and conditions.

The Court of Appeal has recently considered two cases which raise the issues of whether a male comparator employed at a different establishment from an applicant is "in the same employment" for the purposes of a claim under the Equal Pay Act, and the nature of the employer's "material factor" defence under s.1(3) of that Act.

In British Coal Corporation v Smith and others/North Yorkshire County Council v Ratcliffe and others (28 April 1994) EOR56A, the Court of Appeal rules that there was no sex discrimination when an employer cut the pay of jobs done mainly by women in order to tender for work at a commercially competitive rate.

In Bromley and others v H & J Quick Ltd (28.7.87) EOR16A, a majority of the EAT holds that s.1(5) of the Equal Pay Act 1970 does not require a job evaluation scheme to be "analytical" and that whether a job evaluation relied upon by an employer for the purpose of defeating an equal value claim was discriminatory is a matter for determination by the industrial tribunal.

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